1. This is an appln, for the issue of a writ of habeas corpus praying that the petnr. be set at liberty. The learned Chief Justice before whom the appln was filed directed notice to issue to the Govt. & after notice to the Advocate-General, the petn. came on for hearing before us on 21.4.1960. We have heard the arguments of Moulvi Abdul Hasan Syed Ali for the petnr. & the Advocate General on behalf of the Govt.
2. Before the passing of the Const. Ind. the H.C. had power to issue an order directing the release of a person said to be illegally detained under Section 620, Hyderabad Cr. P.C. Now, since the passing of the Const. Ind., the power to issue writs in the nature of habeas corpus & similar writs has been specifically given to the H. C. under Article 226, Const. Ind.
3. The petnr. in this case has been detained under Section 3 Preventive Detention Act IV 4. of 1950, passed by the Indian Parliament on 25-2-1960. Under Article 246, Const. Ind.. Parliament has exclusive power to make laws with respect to my of the matters enumerated in List 1 of Sch. 1 of the Constitution and among the various items in respect of which Parliament is empowered to make laws, Item no. 9, is 'Preventive detention for reasons connected with Defence, Foreign Affairs or the security of India', & under Section 3 of the above enactment the Central Govt. or State Govt. may, if satisfied, with respect to any person with a view to preventing him from acting in any manner prejudicial to the security of the State, make an order detaining him, Therefore, in pursuance of the power vested in the 'Rajpramukh' as the Executive bead of the State, an order was passed, directing that the petnr. be detained. This order was served on the petnr. on 9 3 1950. The order of detention, therefore, has been passed under the power vested in the 'Rajpramukh' as the Executive head of the State. Hence the authority of the person who has passed the order of detention cannot be questioned.
4. The learned Advocate for the petnr. argued that the law under which the order of detention was purported to have been made was ultra vires & void because it seeks to deprive a citizen of one of the fundamental rights granted to him by the Constitution & he relies upon Article 21, Const. Ind., which enacts that no person shall be deprived of his right or personal liberty except by procedure established by law. It cannot be denied that in an appln. for a writ of habeas corpus the validity of the lav under which an order for detention has been passed could be challenged. It is open to the H. C. to ascertain if the Act under which the order of detention was passed, is ultra vires & beyond the competence of the authority by which it has been passed. As was observed by their Lordships of the Privy Council in the case of Emperor v. Benoari Lal A.I.R. (32) 1945 P.C. 48 : 46 Cr. L.J. 589:
If....Ordinance had no validity the special Mag, was in the same position as a private person to take upon himself to conduct the trial of an accused & sentence him to imprisonment without any authority at all. In this latter alternative, the remedy of release by process in the nature of habeas corpus would be an appropriate remedy.
5. The question that falls to be considered is as to bow far the Preventive Detention Act passed by the Indian Parliament is intra vires the Parliament, in view of the express provision in the Constitution that all citizens shall have a right to move freely throughout the territory of India & that no person shall be deprived of his life or personal liberty except according to procedure established by law. In this connection a reading of Proviso 6 to Article 19, Const. Ind. would show that notwithstanding the fact that all citizens shall have a right to move freely throughout the territory of India (Art. 19, Clause (d)), Parliament shall not be prevented from making any law imposing reasonable restrictions on any of the rights, conferred by Article 19 (cls. (d), (e) & (f)), if it is necessary in the interests of the general public. Therefore, prima facie, it would appear that it is within the competence of Parliament to legislate so as to impose restrictions on the freedom of movement of a person, if it is in the interests of the general public. The right of the British Parliament to legislate are extraordinary & its power to pass laws which might; interfere with the personal liberty of a citizen is well recognised. That this is the position of the British Parliament is clear from the judgment of one of the Law Lords in the celebrated case of Liversidge v. Anderson, 1942 A. C, 206 : 110 L.J. K. B. 724. The position of the Indian Parliament is somewhat different. This question as to how far Parliament was competent to pass the Act IV 4. of 1950, came up for decision before some of the H. Cs, in India & the view held by three of the H. Cs. in India is that the above enactment is not ultra-vires. A Full Bench of the Calcutta H. C. declared that it was a valid piece of legislation with the exception of Section 14 of the Act. Likewise the Nagpur H. C. held that this piece of legislation did not abrogate any of the fundamental rights conferred by the Const. Ind. & that the same was intra vires. A similar view has been taken by the Patna H. C. The Bombay H. C., however, has deferred pronouncement of judgment in the cases before it as the matter was sub judice before the S.C. &its; judgment awaited. The Allahabad H. C. on the other hand ordered the release of a Kanpur detenu holding that Section 3, Sub-section (1) of Clause (a), Sub-clauses (ii) & (iii), Preventive Detention Act was ultra vires & void. The learned Judges held that it encroached upon the various rights of freedom allowed to a person under the Constitution, & inasmuch as there was no provision in the Constitution about the deprivation of the personal liberty of a person independent of the provision in Article 19 the enactment was beyond the powers of Parliament. I merely make a passing reference to these judgments as we are not in possession of any authorised report of these judgments excepting that these judgments have appeared in newspapers.
6. The question about the validity of this enactment also came up before the S.C. in the case of A. K. Gopalan A.I.R. (37) 1950 S.C. 27 : 51 Cr. L.J. 1383 & their Lordships of the S.C. after hearing the arguments of the petnr. & the Attorney-General in extenso have reserved judgment. It may be that we are not strictly bound to follow the judgment of any of the H. Cs. but we are certainly bound to decide, according to the law as laid down by the S.C. in this regard, & as the judgment of the S. G. is awaited in this matter, I prefer deferring any expression of opinion on this, matter till the judgment of the S.C. is pronounced.
7. (a) The learned Advocate for the peter, argued that he has made out a prima facie case for the issue of a rule nisi & that, we should direct the production of the detenu in Ct. In this connection our attention was drawn to O. 35, Supreme Court Rules, 1950, (26-1-1950), Order 35, Rule 3 of the said Rules says :
if the Ct. is of opinion that a prima facie case for granting the appln.is made out, Rule nisi shall be issued calling upon the person or persona against whom the order is sought, to appear on a day to be named therein to show cause why such order shall not be made & at the same time to produce in Ct. the body of the person ... illegally or improperly detained .... to be dealt with according to law.
No doubt the H. C. has the power to direct the attendance of the detenu in Ct. but I am of opinion that it is only a matter of discretion left to the Ct. If the detenu can be adequately represented by a counsel or if his interests are not likely to suffer by reason of non-attendence, no order would be made for his production. Generally the allegations made in a petn. for the issue of a writ of habeas corpus are not conclusive by themselves, the practice he always been to issue an order to the resp. to show cause why the petn, should not be granted. This appears to be the practice also in the United States. I am fortified in this view, by the observations of their Lordships of the F.C in the case of Keshav Taipade v. Emperor A.I.R. (30) 1943 F. C. 72 : 44. Cr. L.J. 719.
The power to issue a writ is the nature of habea corpus is a high privilege which the Legislature has entrusted to the H.C. & it seemed to us only fair the the discretion to suggest the most convenient course to be adopted should be left to that Ct.
7a (b) A person under detention would be entitled to immediate release as a matter of right unless the Govt. makes a return which is good on the face of it. Previously the procedure used to be to order the Crown to produce the man under detention along with the return so that if the Ct. found that the return was not good on the face of it, the man detained could be released forthwith, but this procedure has been departed from and modified because has been considered that where the Crown is concerned, the detention is ordinarily legal One other factor has to be taken into consideration & that is that there is always a presumption as to the regularity of Detentioin Orders. Here the return exhibiting the order of commitment is regular on the face of it. of course, the Ct. would insist in the first instance on the production of the order of detention if on the face of it the order appears to be in conformity with the provisions of law, the Ct would not ordinarily direct the production of the detenu unless it is satisfied that the order of detention was made for an ulterior purpose or that there was mala fides on the part of the Executive,
8. In cases of this kind where the Govt. of a State being satisfied that any person is acting in a manner prejudicial to public safety & maintenance of public order makes an order detaining him, it is not open to the detenu to invite the Ct. to go into the Question as to whether the satisfaction of the detaining authority was on proper or reasonable grounds. This principleis based on the authority of the two leading case of the House of Lords (a) Liversidge v. Ander Son (1942) A.C. 206 : 110 LJ. K. B. 724 & (b Green v. The Secretary of State, Home Affairs 1942 a. C. 284 : 111 L.J. K. B. 24. The origins. order of detention which was served on the petnr. was produced by the learned Advocate. General & a certified copy thereof has been filed is Ct. An order to produce in Ct. the body of the person said is be illegally detained, would be made only where a prima facie case of unlawful detention has been made out on behalf of the person invoking the aid of the Ct. The target of attack of the learned Advocate for the petnr, is the invalidity of the law under which the order of detention was passed. No. question of the irregularity of the order passed has been raised. The reap, in this case by producing the order of detention has sought to relieve himself from the imputation of having imprisoned the petnr. without lawful authority. As has been pointed out by me, the order produced by the Govt. appears to be on the face of it a proper order & in the face of a proper order & there being no defect or irregularity about the same, it cannot be said that the petnr. has made out a prima facie case for the issue of an order directing the production of the detenu in Ct. No doubt, if he is successful in his ground of attack viz., that the law under which he has been detained is illegal & void, an order of release would follow immediately. As the judgment of the S.C. of India is awaited & on the judgment of the S.C. would depend the right of the petnr. to be released, I am of opinion that at the present stage the circumstances of the case do not warrant the issue of Rule nisi. I, therefore, decline to issue a Rule nisi for the production of the detenu.[The rest of the order is not material for purposes of reporting]